Day on Torts

January 26, 2006

Justice Anderson To Step Down

The State of Tennessee suffered a blow yesterday when Justice E. Riley Anderson announced that he was stepping down effective August 31, 2006.

Justice Anderson, from Oak Ridge, has served on the Supreme Court for over 15 years and, earlier, served on the Court of Appeals for 3 years. [Bio] He is a compassionate man who understands his responsibility to the people of this State and who fulfilled that responsibility with honor and distinction.

I love his dissent in Carroll v. Whitney, 29 S.W.3d 14, 22 (Tenn. 2000) and Dotson v. Blake, 29 S.W.3d 26, 31 (Tenn. 2000). His opinion in Hunter v. Ura just one year ago helped bring justice and reason to the resolution of medical negligence cases. I could go on and on, but the bottom line is this: Justice Anderson will be sorely missed as a member of our Court.

January 25, 2006

“Gratuitous Undertaking” Lawsuit

by The Law Offices of John Day, P.C.

Here is an interesting decision by the First Circuit Court of Appeals that discusses the liability of a property appraiser who told the plaintiff that “‘he could not himself perform the appraisal’ but [said] that ‘he would find another appraiser and would supervise and review that appraiser’s work.'” Well, the appraisal was wrong and the “supervising appraiser,” who did not charge for his work, was sued.

The Court reversed a grant of summary judgment in favor of the “supervising appraiser,” holding that there was a jury issue on the nature of the relationship between the parties and the extent of the movant’s role in the transaction.

Although this case was decided under Massachusetts law, I bring it to your attention because Tennessee has a number of recent decisions on the issue of “gratuitious undertaking.” (For example, see Biscan v. Brown here and cases cited therein.) Massachusetts law on the subject is a little different than Tennessee law, but the opinion is a nice refresher on the topic.

January 24, 2006

Tennessee State Senator Files Proposed Resolution

by The Law Offices of John Day, P.C.

Here is a proposed resolution that has been introduced in the General Assembly by Senator Finney, Republican from Maryville:

SENATE JOINT RESOLUTION 523
By Finney
A RESOLUTION relative to medical malpractice reform.

WHEREAS, a fair and efficient legal system free of frivolous and abusive litigation is necessary for a vibrant economy and access to affordable health care; and

WHEREAS, rapidly increasing medical malpractice awards are driving up medical liability insurance premiums, which costs are ultimately paid by the consumers of health care services, namely patients; and

January 24, 2006

Donald Trump Defamed?

by The Law Offices of John Day, P.C.

The Donald (as in Trump, not Duck) has sued Timothy O’Brien and Warner Books, alleging that he has been defamed a book written and published by the defendants.

Apparently, Donald believes that the defendants have falsely claimed that he exaggerated his wealth.

The book is called “TrumpNation.”

January 23, 2006

Hyundai Hit With Default Judgment

by The Law Offices of John Day, P.C.

A Washington state court judge has entered a default judgment against Hyundai for failure to give accurate information concerning past claims.

Defense Expert May Be Sued for Medical Negligence by Plaintiff

by The Law Offices of John Day, P.C.

The plaintiff alleged that she had a head injury arising out of a vehicle wreck and filed suit. The defense had her examined by a neuropsychologist under Virginia rules of court and she later sued him.

This is how the Court described Plaintiff Harris’ allegations: “Dr. Kreutzer “verbally abused [Harris], raised his voice to her, caused her to break down into tears in his office, stated she was ‘putting on a show,’ and accused her of being a faker and malingerer. Harris [also] contends that despite his knowledge of her condition, Dr. Kreutzer ‘intentionally aggravated her pre-existing condition and her post-traumatic stress disorder and her brain injury.’ Further, Harris also contends Dr. Kreutzer breached his duty to her in the conduct of the Rule 4:10 examination because he ‘failed to comply with the applicable standard of care within his profession in that he: a. failed to appropriately examine and evaluate the mental status of the plaintiff . . . and d. was deliberately abusive to plaintiff with disregard for the consequences of his conduct.’ As a result, Harris claims her mental and physical health ‘drastically deteriorate[d].'”

The trial court dismissed the case. The appellate court reversed dismissal of the medical negligence case, first saying that “b]y bringing her personal injury action, Harris gave her implied consent to the Rule 4:10 [similar to TRCP 35]examination and formed a limited relationship with Dr. Kreutzer for purposes of the examination. A physician or health care provider, such as Dr. Kreutzer, who performs a Rule 4:10 examination, expressly consents to a relationship with the examinee when he agrees to conduct the examination. Therefore, we conclude there is a consensual relationship between the physician and the examinee as patient for the performance of the Rule 4:10 examination.”

January 22, 2006

Why Do I Get Upset Over Things Like This?

by The Law Offices of John Day, P.C.

You would think that I would react differently.

After all, I am 49 years old. I have practiced law for over 24 years. I paid my way to college and law school mowing lawns, delivering newspapers, and sacking groceries. I supplemented those earnings with work as a meat cutter, a dishwasher, and a bartender. I actually managed a bar for my two years of college; I hired and tried to keep a staff of some 25 bartenders. I worked as the owner’s representative for a real estate developer on a construction site for one summer, and worked for a mobile home manufacturer for two summers. In those jobs I interacted with people in every walk of life in a wide variety of situations.

I have seen a lot of wonderful things and a lot horrible things in my law practice.

January 21, 2006

Wendy’s Finger Case – Pair Sentenced

by The Law Offices of John Day, P.C.

I have written about the finger-in-the-chili case several times, including this post , and this one, and this one.

Now, Anna and her husband have been sentenced to nine years in prison. Read more here.

I said early on that if this woman (or anyone else) falsifies a claim in an effort to get money they deserve some jail time. And I still believe it. But I think nine years is outrageous, especially when one weighs that sentence against the time other criminals have received for crimes I consider to have imposed a far greater impact on society.

January 20, 2006

The Law of Argument

by The Law Offices of John Day, P.C.

Here is a decision that reminds us about the law of arguing damages. The decision – from Florida but true in Tennessee – holds that it is reversible error to refer to assets of the defendant in trying to communicate to the jury how to determine damages for pain and suffering.

It is nice to get a big verdict. But is better to get one you can keep. And that means you should know and follow the law of argument.

January 20, 2006

FDA and Pre-emption

by The Law Offices of John Day, P.C.

I wrote a post the other day about the efforts by the FDA to limit lawsuits by consumers injured by drugs.

Here is an update.